Source · Select Committees · Human Rights (Joint Committee)
Recommendation 144
144
Accepted
The safeguards are limited to a prohibition that these powers cannot be used in relation...
Conclusion
The safeguards are limited to a prohibition that these powers cannot be used in relation to a British citizen or settled person. Other than this, they can be used by immigration officers with no threshold and no time limit. The ECHR memo states: “The fact guidance will need to specifically set out what circumstances need to exist to permit conditions that may be imposed does not imply the clause is not capable of being compatible with Article 5. Rather, it reflects the fact that any application of the new measures will be fact sensitive and case specific with bespoke assessments necessary for the powers to be exercised compatibly with Article 5.”188
Government Response Summary
The government explained that the powers to impose conditions on foreign nationals are used when ECHR obligations prevent immediate removal, with decisions made case-by-case and subject to proportionality analysis. It stated that electronic monitoring would be considered first, with curfews and zones used only if insufficient, implying existing frameworks ensure compatibility with migrant rights.
Government Response
Accepted
HM Government
Accepted
The Home Office will always seek to deport or remove those foreign nationals who pose a threat to the UK or whose behaviour is such that they do not qualify for international protection. Where the UK’s obligations under the ECHR prevent that, consideration will be made on whether to impose these conditions. The intention would remain to remove the person from the UK as soon as possible given the threat they have been assessed to pose to the UK. These measures are considered necessary to safely manage some individuals in the community in between reviews determining whether they can be removed or not. The European Court of Human Rights has said that member states have an undeniable right to control a migrant’s residence in their country.2 The Government recognises that these conditions may be seen as invasive, which is somewhat inherent in the nature of their purpose: to control and mitigate risks posed by an individual, including in relation to their location and activities. The conditions are to be used only in the circumstances described above; namely, where the individual is liable to removal from the UK, but where that is not possible (at the time), possibly due to a real risk of removal infringing their rights under the ECHR. Decisions to impose these conditions will be taken on a case-by-case basis and subject to a proportionality analysis to ensure any measures imposed are compatible with a migrant’s rights under the ECHR. In the first instance, electronic monitoring would be considered as a means to mitigating the threat posed by the individual. Curfews, inclusion zones and exclusion zones will only be imposed in cases where electronic monitoring is not sufficient to mitigate the threat posed by the person. Where a person considers that the imposition of such conditions on them is disproportionate, they are permitted to make those representations to the Home Office and, thereafter, judicial review provides appropriate scrutiny of the Secretary of State’s use of these powers.